Safety

Running on Empty

Let’s face it: The first-ever nationwide aquatics facility mandate has created a mess.But before the interpretation, reinterpretations, pool closures and anger, there were people with good intentions that went bad. This is the story of how that happened — and who’s to blame.

On July 29, 2009, Seattle was blazing. The Emerald City had just reached 103 degrees Fahrenheit for the first time in recorded history.

Municipal workers were mobilized to deliver water to the homeless
and check on elderly residents, while the Meals on Wheels program
offered extra fluids with its regular food distribution.

There may never have been a better time to seek relief in one of
the city’s 25 shallow-water pools. Why, then, were nearly
half of those pools closed?

The answer, simply, is the Virginia Graeme Baker Pool and Spa Safety Act. Signed by President Bush
on Dec. 19, 2007, the now infamous law took effect one year later,
going down in history as the industry’s first-ever federal
mandate. In just over a year, VGB, as it is known, has become
synonymous with government ineptness, budgetary nightmares and
operational snafus.

No accurate records exist, but anecdotally, the law forced
hundreds, possibly thousands of public aquatics facilities to shut
their doors. Meanwhile, it left operators in the lurch, caught
between media reports that painted them as uncaring about child
safety — one national news show reported more than 60 percent
were noncompliant — and government bureaucrats who
couldn’t even agree on rules of enforcement, let alone who
would do the enforcing.

Even now, confusion remains, and the very mention of VGB stirs up
anger and sometimes disgust. Industry professionals can only
wonder: How did a law intended to reduce the number of childhood
drownings go so wrong? And who is ultimately responsible?

Entrapment vs. drowning

The short answer to the latter question is Virginia Graeme Baker.
The 7-year-old for whom the law was named died in 2002 from an
entrapment in a backyard spa.

From 1999 to 2008, there were 83 such incidents of suction
entrapment, according to the Consumer Product Safety Commission, which was charged
with interpreting and enforcing the VGB law. Eleven of those
entrapments were fatal, including Graeme Baker, who also happened
to be the granddaughter of former Secretary of State James Baker III.

While that death, and all others caused by entrapment, was
horrific, those numbers seem insignificant when compared with
accidental drownings. Consider that as of Aug. 4, 2009, the state
of Texas alone had lost 84 children to drowning for the year, and
not a single one by suction entrapment.

Indeed, it was drowning statistics, not entrapment, that influenced
the law — so much so that in the “Findings”
section of the VGB Act, there’s not a single reference to
suction entrapment. There are, however, references to drowning as
the second leading cause of death in American children ages 1 to
14; and the act does note that “in 2004, 761 children aged 14
and under died as a result of unintentional drowning.”

“I think those findings utilize the numbers and emotion of
drownings,” says Johnny Johnson, president of the National
Drowning Prevention Alliance and founder of the Blue Buoy
Swim School in Tustin, Calif. “It’s misrepresenting
the issue. There’s no mention of entrapment there.
You’re comparing apples to oranges.

Others agree.

“The intent of the VGB Act was to protect against
suction-entrapment, and the goal was noble,” says Dan
Johnson, past president of the Florida Swimming
Pool Association and founder of Swim Inc. in Sarasota, Fla.
“But it’s not an effective drowning-prevention act. ...
I’ve been told the chances of a child being entrapped on a
drain are 40 times less than they would be for that child to be
struck by lightning.”

Tom Griffiths, founder of the Aquatic Safety
Research Group, spent more than two decades as director of the
Aquatics and Safety Office for Athletics at Penn State University
in State College, Pa. Like many other professionals, Griffiths
believes a more effective law would have focused on teaching
children to swim.

“That would have saved many more lives than changing the
drain grates,” he says. “The bottom line is, you now
have a huge law to prevent double-digit deaths. And the sad thing
is, we accept thousands of drownings each year. We just shrug it
off.”

The law writers

The answer for why that happened in the case of VGB may lie in who wrote the law.

SVRS’s are made by various manufacturers. The devices send
air into the system and/or power down the pump motor when a vacuum
increase is sensed. Relatively easy to install, they cost
approximately $500 to $1,000.

Though VGB doesn’t require that these products be fitted on
every pool, they are listed as one of only a few permissible
options.

Before the law passed, SVRS’s were virtually unknown outside
aquatics. The new legislation changed that.

Jennifer Hatfield, director of government and public affairs at the
Florida Swimming Pool Association, recalls a meeting she attended
in Washington, D.C. Also at the gathering were Debbie Wasserman
Schultz, the Congresswoman who sponsored the act; Bill Weber, CEO
of the national trade association APSP; and Alan Korn, an official
with Safe Kids USA, a Washington, D.C.-based advocacy group.

Hatfield went into the meeting believing it was an opportunity to
discuss the language of what would become VGB. But the playing
field, she says, was noticeably uneven.

“[We] really had no part in drafting the original
bill,” she says. “Our understanding was that it had
already been done by Safe Kids and the Pool Safety
Consortium.”

PSC was a group of safety equipment manufacturers founded by Paul
Pennington, owner of Vac-Alert, an SVRS-maker in Santa Rosa, Calif. The
organization has since been expanded and renamed the Pool Safety
Council.

Korn confirms his group was involved in the bill’s drafting,
though not in the “hyper-technical aspects.”

“The Baker family helped craft a legislative response,”
Korn says. “A few pool service companies from Florida, drain
manufacturers, Vac-Alert and Stingl Products (another SVRS manufacturer) were also brought in. And
the Association of Pool & Spa Professionals was
there representing the industry.”

Pennington declined to be interviewed for this story. Calls to
David Stingl of Stingl Products were not returned.

According to Carvin DiGiovanni, APSP senior director, standards and
government relations, the association did review drafts and provide
guidance on certain technical aspects of the act.

But to suggest the trade group played a significant role in writing
the bill conflicts with the accounts of those who entered the
discussions along with it.

“My involvement came late — the same time as
APSP,” says Larry Caniglia, executive director of the
Northeast Spa & Pool Association. “I just knew it was very late in
the process. At that point, what was written was written, and we
were just trying to get the language fixed. ... But we knew it was
an uphill battle.

“Honestly, I wish I knew who in the industry was involved in
writing it,” he adds.

When asked recently about who was responsible for the language
contained in the bill, Wasserman Schultz remembered a different
list of contributors.

“In drafting the bill, we worked with the staffs of the
Energy and Commerce committees, the CPSC and Safe Kids Worldwide
— that’s it,” she said. “We didn’t
have a legislative writing party.”

Warning shots

After VGB became law, numerous organizations — including the
National Recreation and Park Association and YMCA of the USA
— contacted CPSC requesting that the deadline for compliance
be postponed.

They were joined by Thomas Lachocki, Ph.D., CEO of the National Swimming Pool
Foundation in Colorado Springs, Colo. Shortly before the
compliance date, Lachocki issued a press release titled,
“Controversial New Pool & Spa Safety Act Will Create
Public Pool Closures Nationwide.”

“Suction entrapment claims about one to two victims per year
based on historic data from the CPSC,” he wrote. “In
contrast, drowning claimed the lives of 761 children aged 14 and
under in 2004, and those numbers may increase since fewer children
will attend swim lessons when pools are closed.” Lachocki
added that operators across the nation would be unable to comply
with the VGB Act for a number of reasons.

First was education. Despite the act having budgeted $5 million a
year for a sweeping educational program directed toward the pool
industry, no such program existed. The result, Lachocki said, would
be confusion or outright ignorance of the law.

Next was the question of drains. Though manufacturers were working
diligently, compliant drain covers still were not available in the
quantities required to satisfy the needs of 300,000 public pools
nationwide.

Moreover, the law meant the area below the cover (the sump) might
have to be excavated and replaced to be compliant. This could add
thousands to the cost of repairs at a time when budgets already
were stressed.

In addition, under state laws, local health departments must review
and approve changes before work on pools could begin. But health
departments didn’t have the resources to inspect all public
pools in their jurisdictions before the Dec. 19, 2008, deadline.
Operators would be forced to either break state law by making the
changes before local departments could inspect them, or violate the
federal statute by first seeking approval from the state.

In each case, the only other alternative would be to close the
pool. Lachocki argued that a delay would create time to
“resolve technical issues and solve the entrapment problem
— without causing a drowning problem, reducing public
services, and hurting our fragile economy.”

However, no delay was granted, and on the day of the deadline,
hundreds of thousands of public swimming pools and spas suddenly
found themselves under the jurisdiction of the VGB Act.

Parts and labor

With the law’s compliance date quickly approaching, drain
cover manufacturers struggled to certify their products in time.
Though the issue was discussed prior to the bill’s passage,
Wasserman Schultz says there was no concern over whether the supply
of compliant drain covers would be able to meet an expected spike
in demand.

But in the weeks before and the months after VGB took effect,
scores of operators had little choice but to close down as
manufacturers strained to fill order backlogs.

In Florida, pools in Martin, Port St. Lucie and Indian River
counties sent away for new drain covers in autumn 2008. By Dec. 20,
2008, those deliveries still had yet to arrive. The manufacturer,
according to published news reports, was bogged down with
orders.

The following month, the El Paso Parks and Recreation Department
was fielding 20 calls a day from residents asking when their area
pools would reopen after at least three were closed due to a delay
in the shipment of compliant drain covers, according to reports in
the El Paso Times.

Similar scenarios played out again and again, from Maine to
California. Jeremy Shoffner has been working with local suppliers
for months to find drain covers that fit the nine pools he oversees
for the aquatics program in San Jose, Calif.

“All of our pools had different covers,” Shoffner says.
“It wasn’t a cookie-cutter method of getting the new
grates.” Obtaining compliant drain covers wasn’t the
only issue. Many operators had trouble finding qualified
professionals to install them.

Paul Norris was one of them.

“This thing was massive,” says the director of
recreation and leisure services for the town of Windsor, Conn.
“It was hitting hotels, condo associations, YMCAs. … We
couldn’t get a vendor to open our pools on time. We were
late. There just aren’t a lot of contractors around who can
do the work.”

Worse yet, in many cases just because a contractor can’t do
the work, doesn’t mean he won’t. Rick Earnhardt knows
this firsthand.

As one of only a few licensed service professionals in western
Pennsylvania, he completed upwards of 50 retrofits in 2009, from
large-scale college pools to private country clubs.

“What’s happening now is, people are making the
situation more dangerous than before,” he says. “And
nobody’s checking it.”

“I’ve seen everything,” he adds. “I saw one
pool where the covers were literally welded onto the bottom, which
is illegal. Other pools are now less safe hydraulically. It’s
a little scary.”

The price

Before the VGB Act was passed, the Congressional Budget Office
conducted an analysis of its projected financial impact.

The CBO’s study concluded the law would not adversely affect
those who would be subject to its regulations, according to
Wasserman Schultz. “It was given an insignificant
score,” she says. “The drains are not expensive …
and the renovation requirements were minimal. I would say $5,000 is
a rare exception.”

But across the nation, the fixes required of public pools and spas
have varied wildly in price, with some requiring tens of thousands
of dollars in certified repairs. Again, the only viable option for
many has been closure.

In Seattle, where 11 of the Parks and Recreation Department’s
25 public wading pools were shuttered on the hottest day on record,
officials still were scrambling to locate the funds to pay for
needed repairs in late 2009.

“It’s been a big effort,” Kathy Whitman,
Seattle’s aquatics manager said at the time. “Some of
our bigger pools have three full replacement drains. We’re
looking at about $10,000 per pool just for parts. And that
doesn’t include application fees, paying an engineer to
conduct an analysis of the pools’ mechanical systems, and
labor.

“Clearly, it’s going to be in the range — just
for the physical pieces and labor — of $400,000,” she
says.

Seattle is far from the exception. Renovations to 21 public pools
in Phoenix cost the city approximately $350,000 (average price for
each pool: $16,000).

Recreation officials in Dickinson, N.D., were quoted $55,000 to
bring a single outdoor pool up to code, according to The Dickinson
Press. No fewer than 10 public pools in Georgia were closed for the
season after state officials said they couldn’t afford the
$150,000 required to make the necessary repairs.

In Woodbridge, Conn., families this winter were locked out of the
town’s indoor swimming facility at Beecher Road. The pool was
built in 1971 and carried L-shaped drains, recreation department
officials say. Because no compliant covers could be located, the
town instead planned to install new drains at an estimated cost of
up to $80,000.

There’s consensus among many of the nation’s leading
water safety experts over how the VGB Act could have been made more
effective. Besides properly funding an educational element, and
perhaps adding a component for child swim lessons, a graduated
methodology would have at least identified and targeted pools that
posed the greatest risk, they say.

“This really was a hot tub and wading pool problem,”
Griffiths says. “The law has merits, but to say in one
calendar year that all pools needed to change out their [drain
covers], to me was way out of line.”

He adds that a phased approach based on pool depth might have been
better. “More than 5 feet deep and it’s very hard to
get entrapped,” he says.

For his part, Dan Johnson wishes the law had been incorporated over
two years, with clearly defined, staggered goals, such as creating
an effective delivery system to disseminate information from the
federal level down the chain. That, he says, also would have
allowed manufacturers sufficient time to produce enough compliant
equipment. Year two could have been dedicated to educating health
departments, building officials and the aquatics industry about the
act.

“And I think [the law] went astray in that it was
fast-tracked,” Johnson says. “The language was
unfocused. They didn’t even consider all the issues involved
in suction-entrapment avoidance.”

But there’s another, darker truth that should not escape
mention. According to 2007 statistics collected by the Phoenix
Children’s Hospital, 85 percent of all child drownings occur
in backyard pools and spas.

So perhaps there should be a greater sense of urgency, in light of
the fact that CPSC still has yet to release its residential
guidelines for the new federal law; as of early fall, there was no
defined mandate covering private vessels.

It means, tragically, that the same type of spa that claimed the
life of Virginia Graeme Baker more than 71/2 years ago, is no safer
today than it was the day she died.